Staff Reportto�oF MEETING DATE: 06/16/15
ITEM NO.
��s Atos� COUNCIL AGENDA REPORT
DATE: JUNE 9, 2015
TO: MAYOR AND TOWN COUNCIL
FROM: LES WHITE, INTERIM TOWN MANA
SUBJECT: CONDITIONAL USE PERMIT U -13 -012 SUBDIVISION APPLICATION M-
13 -004 AND ARCHITECTURE AND SITE APPLICATIONS S -13 -020
THROUGH S -13 -027. PROPERTY LOCATION: 258 UNION AVENUE
APPLICANT: CHRIS KUMMERER PROPERTY OWNER /APPELLANT
VALLEY ONE INVESTMENT LLC.
CONSIDER AN APPEAL OF THE DECISION OF THE PLANNING
COMMISSION APPROVING A REQUEST TO CONSTRUCT EIGHT
RESIDENTIAL CONDOMINIUMS ON PROPERTY ZONED C -1. APN 527-
44 -012 AND 527 -44 -013.
REMARKS:
Attachment 15 contains new correspondence. Attachment 16 contains additional materials
submitted by the appellant.
Attachments (previously received with June 2 2015 staff report):
1. December 10, 2014 Planning Commission Staff Report (including Exhibits I — 16)
2. December 10, 2014 Planning Commission Desk Item
3. January 28, 2015 Planning Commission Staff Report
4. January 28, 2015 Planning Commission Desk Item (including Exhibits 17 -19)
5. February 25, 2015 Planning Commission Staff Report (including Exhibits 20 and 21)
6. February 25, 2015 Planning Commission Desk Item (including Exhibits 22 -23 )
7. March 17, 2014 Town Council Verbatim Minutes (57 transcribed pages)
8. January 28, 2015 Planning Commission Verbatim Minutes (80 transcribed pages)
9. February 25, 2015 Planning Commission Verbatim Minutes (76 transcribed pages)
10. Appeal from Lee Quintana, received March 9, 2015 (seven pages)
11. Draft Resolution to deny the appeal and approve the applications with Exhibit A (20 pages)
PREPARED BY: LAUREL R. PREVETTI Plt�
Assistant Town Manager /Community Development Director
Reviewed by: N/A Assistant Town Manager N/A Town Attorney N/A Finance
N:ADEVATCREPORTS \2015VUnion258- appeal6- 16.doex Refonnatted: 5 /30/02 Revised: 6 /10/15 10:28 PM
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: 258 UNION AVENUE /U -13 -012, M -13 -004, 5 -13 -020 THROUGH 5 -13 -027
June 9, 2015
12. Draft Resolution to grant the appeal and remand the applications to the Planning Commission
(four pages)
13. Draft Resolution to grant the appeal and deny the applications (five pages)
14. Letter from applicant, received May 26, 2015 (12 pages)
Attachment received with this staff report:
15. Correspondence (five pages)
16. Additional information from the appellant (nine pages)
Distribution
Lee Quintana, 5 Palm Avenue, Los Gatos, CA 95030
Shawn Wang, Valley One Investment, LLC, 12280 Saratoga - Sunnyvale Road, Suite 107,
Saratoga, CA 95070
Chris Kummerer, CKA Architects, 2089 Avy Avenue, Menlo Park, CA 94025
LRP:JSP:cg
Laurel Prevetti
Subject: RE: Petition from 1999 to rezone 258 Union as RI residential
From: John Yeager
Sent: Wednesday, June 10, 2015 9:05 PM
To: Joel Paulson
Subject: Petition from 1999 to rezone 258 Union as RI residential
Hello Mr Paulson,
It came to our attention that a petition was circulated back in 1999 which had a lot of neighborhood support for a zoning
change to R1.
If the property was rezoned as R1, land use and appropriate codes to follow would become very clear.
Attached are pictures of the petition submitted to the town at that time.
John
ATTAMMEN'ii 1 5
This Page
Intentionally
Left Blank
Laurel Prevetti
From: Lee Quintana <leeandpaul @earth link.net>
Sent: Thursday, June 11, 2015 11:02 AM
To: Joel Paulson; Laurel Prevetti
Subject: Comments on 258 Union Ave Appeal
To: Major Jensen and Town Council
From: Lee Quintana
Re: Appeal of 258 Union Avenue
CUP: U -13 -12
Subdivision Application: M -13 -004
Architecture and Site: 5 -13 -20
Date: June 11, 2015
The appeal is based on:
• New Information/
• Procedural Error
• Policy Direction.
Introduction
Since submitting the appeal I have done additional research, watched the videos of the meetings and read the verbatim transcripts for the March 13, 2014 Town
Council hearing and the January 28, 2015 and February 25, 2015 Planning Commission hearing. Based on the above I no longer find that the Commission Abused
its Discretions. However, I still conclude that the Commission made a number of procedural errors.
In addition, I no longer conclude, as I stated at the January 28, 2015, Planning Commission hearing, that the best fit this project is a Medium Density General Plan
Designation and an RM 5 -12 Zoning. However, I still conclude that the General Plan and Zoning on the site should be amended to reflect a realistic long term use
for the property. The existing development patterns in the surrounding area would support either a Low Density General Plan with an R -1:8 Zone or a Medium
Density General Plan designation with a RD zoning. (See discussion of Development Patterns)
The following comments are intended to provide more specific information and references to support comments made in the original appeal letter.
The Motion Approved by Town Council on March 17 2014
Council Member Spector made a motion to remand the project to the Planning Commission.
During the Council discussion immediately prior the motion to Council Member Spector stated:
"If you look at it, the Planning Commission was looking at facts. They were saying the project was to dense, that it lacked articulation, that it had small common
areas, it had a problem with the units that back onto the back street, it had a problem with guest parking, it had a problem with the transition between the
townhouses in the front and the residential units in the back" (Verbatim minutes p. 47, line 12, 3/17/2014)
"They had a lot of factual issues wit the development. Yes, they did discuss whether a condominium project of this type was appropriate, but they were told yes,
and they went forward in that vein. So they did not, in my opinion, make an error in thinking they could not adopt this kind of project." (Verbatim minutes of, p.47,
line 19, 3/17/2014)
Council Members Spector's motion to remand:
.... I am going to go ahead and make a motion to remand this project back to the Planning Commission. I'm doing this on the basis first of all that we have new
information from the applicant, and I am going to remand with specific direction that the Planning Commission, with hopefully the assistance of Staff, will look at the
Architecture and Site Ordinance, the CUP Ordinance, and the Subdivision Map Act to determine for themselves what they feel is appropriate on the site."
(Verbatim minutes p.49, line 10, 3117/2014)
During the Council discussion following the motion, Council Member Spector stated:
"By making this motion and sending it back to the Planning Commission, I'm definitely not saying I'm sending it back of this number of units. That is an issue for
the Planning Commission to determine under the existing ordinance, Architecture and Site, CUP, Subdivision, and the General Plan." (p. 52, line 21, 3/17/2014)
"I agree that it's going to take more work on the Planning Commission's part , ..... to make this an appropriate development, ... You're going to have to go to the
wording of our applicable ordinances and General Plan and you're going to have to get your legal construct from that." (Verbatim minutes p.53, line 3, 3/1712014)
Before making the motion Council Member Spector included provided a number of currently available mechanisms to assess, control and regulate a detached
condominium project. (Verbatim minutes p. 48, 3117/2014)
My understanding of Council Member Spectors motion considering the comments she made before and after making the motion is as follows:
• The remand was not based on Commission error
• The remand was based on new information; a new plan submitted on the day of the hearing. ATTACHMENT 1 6
• The intent of the motion was for the Planning Commission to do a comprehensive analysis of the project based on the mechanisms that currently exist
that can be used to control and regulate condominium developments (e.g. Common Interest Developments)
• The proposed density of the project was not fixed, but rather subject to determination by the Planning Commission based on a comprehensive analysis
of the project as stated above.
Considering the above the Planning Commission did not follow Council direction
The action minutes do not state the approved motion within the context it was made. The motion, does not contained reference to the amended Council
Resolution, nor does the Staff Report for the December 10, 2014 PC hearing contain a full summary of the Council's action in theCommission.
The information on which my understanding is based would not be available to Commissioners unless they attended the Council hearing, watched it KCAT, or
viewed the video on the Town's website before the Planning Commission hearings.
Planning Commission Motion to Approve the Project with Additional Conditions
The motion to deny the project in December, 10, 2013, was unanimous (7 -0). The applicant appealed that decision to the Town Council which remanded the
project to the Planning Commission for reconsideration as described above. The motion made by Commissioner O'Donnell to approve the project with
modifications was a split vote. (4 -3). This motion approves major changes to this project without any specific limitations except that three units be converted to
single story and the rear setback for those units can be 20'. The motion did not set specific limits for site coverage which will increase, for a maximum height, for
the maximum square footage of the structures, etc.
It is not known how the revised project will affect the drainage requirements, nor is it known whether the motion will result in a revised project that reduces the
shadow impacts it is intended to reduce since there is no requirement for a reevaluation.
By not requiring the revised project return to the Planning Commission the motion forecloses the opportunity from the neighbors whether the motion projected a
compromise that is acceptable, unless the Planning Commission's decision were appealed.
The split vote had me wondering if all Commissioners had viewed the
Town Council hearing video of the applicant's appeal. If not, how did watching, or not watching, the video correlate with how a Commissioner voted?
The answer to these question raised two additional questions: (see attachment: Who saw the video and How did they vote)
• Would the vote have been different had all Commissioners viewed the video?
• Does not watching the video of the 3/1712015, Town Council disqualify a Commissioner from participating during the hearing or voting on the matter?
Commissioner O'Donnell made the following motion that was seconded by Commissioner Erekson:
"I'm going to make a motion just to see what we are going to do. I would move that with the amendments or changes that I will suggest shortly we would make the
required findings for granting of a Conditional Use Permit, which are set forth in Exhibit 3; we would make the required findings for a residential project with three
or more units, which is set forth also in Exhibit 3; find that the project is consistent with the Residential Design Guidelines, also spelled out in Exhibit 3; find that the
project is consistent with the considerations for the approval of Architecture and Site applications, approve the Conditional Use Permit, which is U -13 -012, and
Subdivision Application M -13 -027 subject to the conditions in Exhibit 4 and the development plans; however, that the project would be for the three units identified,
I think it is Units 6,7 and 8, would be single -story, not double -story, they would be able to go back to the normal setback for a single story, which I understand is
20', and I think that's it. So that's the motion' The motion was seconded by Commissioner Erekson. (Verbatim minutes p.75, line 3, 2/25/2015)
The verbatim minutes of January 28, 2015, and February 25, 2015, show this motion was based on several assumptions which are not correct. The incorrect
assumption include:
The Council upheld the applicant's appeal based on Commission error.
Nothing in the information provided to the Planning Commission in the December, 2014 Staff report indicated that the Town Council did not support the
density proposed by the applicant.
The project was designed to meet the RM 5 -12 standards in the Section 29 of the Town Code.
Bullets 1 and 2:
As perviously indicated in the discussion of the Town Council Motion the assumptions under bullets 1 and 2 are not correct.
Bullet 3:
Commissioner O'Donnell stated, before making the motion that the applicant had designed the project to meet RM standards. (Verbatim minutes p.73, line 24,
2128/2015). This assumption is also not correct for the following reasons:
• The applicant's letter dated May 28, 2015, item # 18 states "The project is consistent with the standards set forth in the C -1 designation" Item #19 and
Item #22 of the Applicant's letter also states that the project was designed following the C -1 regulations.
• However, the applicant previously stated during public testimony that the project had been designed to meet RM -5 -12 Zoning standards (Verbatim
Minutes p. 50, line 20, 2/2512015)
• The staff report for the June 2, 2015 Commission hearing states the Union Avenue project meets C -1 standards.
• However, the design reviewed by the Planning Commission during its 1/28,2015 and 2/28,2015 hearings does not meet the standards for C -1 standards
for a project that abuts a residential use. (See attached Table: Zoning)
• This table shows the project as submitted did not meet C -1 standards for projects abutting residential uses
• The table also shows that project did meet RM standards for the south side setback and it is currently unknown whether it will meet the required rear
setback based on height.
Just before the motion to approve the 258 Union Avenue project was made Vice Chair Badame made the following comments:
"Can you confirm that if we did do a General Plan amendment and zoned it Residential that we would have floor area square footage requirements. We don't have
FAR for a Commercial Zone. Is it correct that we would have an FAR if it were zoned for residential? Also, wouldn't we have setback requirements: Right now
we've got a zero lot line on he south side" (Verbatim minutes p.74, line 5 2/25/2014)
Staff replied:
"I can pull up the exact language. Staff would not support a General Plan change or zone change to RM -5:12, because there is no RM -5:12 adjacent to this
site. We would recommend an R -1:8, so that would be single- family.... which is similar to the properties to the east of the neighbors.......... (Verbatim minutes p. 74,
line 15)
This is the first that staff recommended a zone change to R -1:8.
Immediately following this recommendation, before staff had the opportunity to address all of Vice Chair Badame's question, Commissioner O'Donnell made the
motion to approve the project, with changes. However, his motion did not requiring returning the project to the Planning Commission to assess whether the
revised project adequately address the issue of shadowing and solar access. The following is Commissioner O'Donnell's motion:
"I'm going to make a motion just to see what we are going to do. I would move that with the amendments or changes that I will suggest shortly we would make the
required findings for granting of a Conditional Use Permit, which are set forth in Exhibit 3; we would make the required findings for a residential project with three
or more units, which is set forth also in Exhibit 3; find that the project is consistent with the Residential Design Guidelines, also spelled out in Exhibit 3; find that the
project is consistent with the considerations for the approval of Architecture and Site applications, approve the Conditional Use Permit, which is U -13 -012, and
Subdivision Application M- 13-027 subject to the conditions in Exhibit 4 and the development plans; however, that the project would be for the three units identified,
I think it is Units 6,7 and 8, would be single -story, not double -story, they would be able to go back to the normal setback for a single story, which I understand is
20', and I think that's it. So that's the motion" The motion was seconded by Commissioner Erekson. (Verbatim minutes p.75, line 3, 2/25/2015)
The Chair immediately called the question without the opportunity for any additional Commission discussion
Development Patterns in the Surrounding Area
Allowing a 100% residential development on a lot with a commercial GP and Zoning is not consistent with the patter of development in the surrounding
area. Allowing a project with a density within the RM 5 -12 density range appears to me as "an emperor's new cloths" way of allowing what is the equivalent to
.,spot zoning' as defined by staff.
1. Detached single family common interest proiects Town wide
Four applications have been submitted to the Town for detached single family units in other than a R -1:8 zone. These projects are located on Forrest, Town
Terrace and Hubble Way and the Union Avenue project.
The Forest, Town Terrace and Hubble sites all have residential GP designations and are zoned for residential.
The 258 Union Avenue project is the exception:
• It does not have a residential General Plan land use designation or a residential zoning.
• It s the first application for a 100% residential project requesting a CUP for a project with a lot that does not have either a residential General Plan land
use designation or a residential zoning. There is no established pattern of approving this type of application. A such, its approval indicates a new policy
direction, and this project should decided before and separate from the PC Study Committee.
2. Residential oroiects located in a commercial zone and approved with a CUP
Besides the four application discussed above I also researched residential uses approved with a CUP that were located on lots with a Commercial zoning.
These projects were all:
• Located within the area defined as Downtown in the 2020 General Plan Glossary
• Located along the major arterials leading to or within the Downtown
• Sites located on two streets south of Highway 9 and between Santa Cruz Avenue and Tait Avenue (the Almendra area).
• The approved use was consistent with the site's General Plan Land Use Designation.
• Were mixed use with residential above or behind the commercial uses.
• Those located in the Almendra area were single family structures constructed before 1941 on sites with a Medium Density Residential Land Use
Designation. These structures had previously been converted to Office use and were converted back to a residential using a CUP.
Again the 258 Union Avenue project is the only that does not fit the above patterns:
• It is located outside the Downtown area, and
• Its approved use is not consistent with the site's General Plan Land Use Map Designation.
The Union Avenue project is the first application to use a CUP for a 100% residential for detached single family units where both the General Plan Land Use
Designation and the Zoning district are both for commercial uses. This approval is unique and puts this project in the position of establishing a new policy
direction. It will, in effect, if not in fact, provide a precedence for the approval of other similar projects. For this reason it should be considered separate from the
work of the PC Study Committee.
3 Comparison of GP designations and Zoning districts in the area surrounding 258 Union
(See attached figure comparing GP and Zoning)
There are three areas where existing use or proposed use does not match both the General Plan Land Use Map and the Zoning Map.
• The project site which has both a Commercial GP Designation (Neighborhood Commercial and Zoning district (C -1). The proposed use is not consistent
with either the General Plan Map or the Zoning Map.
• The Office use in the NW corning of Downing Center which has a Neighborhood Commercial GP Designation but is located in an O (Office) Zone. After
May 1, 2006, any new office building constructed in a commercial zone requires a CUP.
• The development along Downing Oaks Court. The uses on Downing Oaks Court (duplex, 4 -plex and 6 -plex) are consistent with its Medium Density
General Plan Designation. The Zoning Map shows this area as C -1, however, the APN records indicate this area was approved with a PD
Zoning. Since a PD represents a zone change it is possible, depending on how the PD was established, that the zoning and the GP designation match
and are both consistent with the existing use. Additional research would be necessary to determine this.
4. Density vs Intensity
Density measures the number of uits /acre, while Intensity measures the amount of development on a site or within an area.
The most common and easiest measure of intensity is the Floor Area Ratio (FAR). Other easy measurements of intensity include:
• Building site coverage
• Impervious surfaces
• Setbacks along parcel lines
• Distance between buildings
• Maximum height of buildings
However, Intensity and density are not just a numbers game. Perceived density and intensity may be affected by:
• What is included or excluded from the measurements
• Qualitative factors, which may not be measurable may also affect how intensity or density is perceived.
• Qualitative factors include site layout, building orientation, building design and architectural style.
The major measure of intensity in the Town of Los Gatos is Floor Area Ratio (FAR)
The General Plan glossary and the Zoning Code define FAR respectively as:
• The size of a building in Square feet (gross floor area) divided by the net land area expressed as a decimal. It further states that the FAR is generally
used in calculating the building intensity of residential and non - residential development. (GP Glossary p. GL -9)
• Section 29.10.020 of the Zoning Code defines FAR as the gross floor area of a building or buildings on a zoning plot divided by the area of such plot.
• Considering the definitions of FAR in the General Plan and Zoning Code it appears that the Town uses the FAR to measure a projects intensity even if
a maximum Far has been established.
• Both Sec. 29.40.075 (residential) and Sec. 29.40.060 (non - residential) of the Zoning Code states:
• The objective of the FAR is to assist in determining whether the mass and scale of a project is compatible with the surrounding
neighborhood.
• Where a maximum FAR applies the FAR is a nominal limit and not a goal.
• In general, a maximum FAR applies to lots developed or proposed to be developed with single family or two family dwellings in all residential
and commercial zones. (Sections 29.40.075 and 29.50.060 and Residential Design Guidelines p. 12)
• Different formulas apply to different sized lots. The lots fall into 3 categories:
• Lots containing less than 5000 square feet. In this case the formula applies to both the living area square footage and the garage in access
of 400 square feet.
• Lots that contain between 5,000 and 30,000 square feet.
• Lots over 30,000 square feet.
0
The Zoning Code also provides for exceptions to a maximum FAR provided the lot coverage, setbacks and FAR of the proposed project provided that findings can
be made that the project is compatible with the development on surrounding lots. (Sec. 29.40.075 and Sec. 29.50.060)
1. Comparison of density and Intensity of 258 Union with the surrounding area
(See the attached Density vs Intensity Table and Key)
The Density vs Intensity table is consistent with the Applicant's statements that the project provides a transition in density between the lower density single family
homes to the east (areas 7, 8 and 9) and the higher density of the residential uses to the south (areas 4 and 5) and the density of the project site (area 6).
The table also shows that the same transition does not occur for the FAR. The project site has a FAR of +1- .50 (living space only) or +/- .60 including garages.
Exception offor Downing Oaks Court the surrounding areas have FAR's that are +/- 50% less than the project site - including the duplexes to the south of the
project (area 5) and along Pinehurst (area 1). Both areas 5 and 1 are single story and can easily be mistaken as single family homes.
Even Downing Oaks Court (area 2) which contains duplexes, four - plexes and six - plexes has a FAR of .36 which is 25% lower than the FAR on the project site.
The FAR of .50 does not fit the development pattern of the surrounding area.
1. Consistency with the General Plan
The General Plan states within the first two paragraphs:
• The role of each community's General Plan is to act as a constitution for development, the foundation upon which all land use decisions are to be
based...."
• To be considered consistent with the General Plan, a project must not only be consistent with the Land Use Plan, but it must also further the goals of all
elements of the General Plan and meet the intent of its policies
In reviewing the General Plan I found +/- 40 goals and policies within the Land Use and Community Design Elements that apply to the Union Avenue project. Of
these a minimum of 12 relate to infill projects, character of the immediate and surrounding area, density, intensity and blending with surrounding development,
singly or in various combinations.
Three policies emphasize the relationship between the density and intensity.
• Policy LU -1.4 and LU -6.5. The fact that these two policies are the same emphases their importance.
"The type ( building type), density and intensity of new land use shall be consistent with the immediate neighborhood"
• Policy CD -6.2
"Balance the size and number of units to achieve appropriate intensity."
The intensity of the Union Avenue project as indicated in the Density vs Intensity discussion above is not consistent with the pattern of development in the
surrounding area. There are several ways for a project to become consistent with existing density and intensity and development pattern to and achieve an
appropriate balance between density and intensity:.
• Reduce the density
• Reduce intensity by reducing the size of the units
• Change the building type
• Any combination of the above.
I will submit additional comments for the addendum.
Thank You,
Lee Quintana
ATTACHMENTS:
Who saw the video
General Plan Land Use and Zoning Map
Residential Projects with CUP
Intensity vs Density (2)
Project zoning
Maximum Density Potential
I 11h ME
Who viewed t r 3/17/2014 video r. •. how • • they vote?
How vote?
J NO NO YE
YES
The Question: If all Commissioners I • viewed
video in conformance with Planning Commission Procedure
i • • r affected the outcome of
General Plan Land Use & Zoning Map
Low Density 1F ^. Office Professional ■ Commercial
Medium Density Open Space San Jose
R- 1:8— Single family Office " C -1 Neighborhood Commercial
RD - Duplex RM — Multi - family San Jose
Density vs. Intensity
® Pinehurst (duplex)
?
0.26
8,546 sq. ft.
® Downing Oak Court
12 units/
0.36
10,897 sq. ft
(2,4,6 Alex)
acre*
Q Lynn Ave. North side
?
0.17
10,873 sq. ft
(SF)
0 Union Ave. (SF)
7 units/
0.23
6,181 sq. ft.
acre
0 Union (duplex)
11 units/
0,27
7,630 sq. ft
acre
® HershnerCt. (SF)
QHowes Ct. (SF)
O Thomas Dr. (SF)
Union Ave. (Office)
6 units/
acre*
6 units/
acre*
7 units/
acre*
N/A
0,28 6,748 sq. ft.
0.25 7,285 sq. ft.
0.23 6,283 sq. ft.
0.23 11,575 sq. ft.
1109 sq. ft.
1,095 sq.
ft.
1,843 sq.
ft.
1,428 sq. ft
1034 sq. ft.
1,908 sq.
ft.
1,832 sq.
ft.
1,477 sq.
ft.
2,606 sq.ft
6
C8<
■
C
v► 2 5 9 ,
4 r
a 0
Re aining
Attach ents to be
Provided Under
Separate Cover